Tran v Department for Correctional Services & Ors - [2006] SADC 42

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
TRAN v DEPARTMENT FOR CORRECTIONAL SERVICES & ORS
Judgment of His Honour Chief Judge Worthington
13 April 2006
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - POWER TO CONTROL PROCEEDINGS
PRACTICE - REPRESENTATION OF PARTY BY UNQUALIFIED PERSON - DISCRETION
Appeal from a Master refusing an application by the plaintiff for RWC to appear for him as a lay advocate - principles to be applied - discretion - application considered afresh - application refused and appeal dismissed - RWC already assisting plaintiff with this action - arrangement between plaintiff and RWC re proceeds of judgment - question of whether RWC in breach of Legal Practitioners Act referred to Attorney General.
Legal Practitioners Act 1981 s21 and s51; Powers of Attorney and Agency Act 1984 s5, referred to.
Giancaspro v SHRM (Australia) Pty Ltd [2005] SASC 340; Damjanovic v Maley (2002) 55 NSWLR 149, applied.

TRAN v DEPARTMENT FOR CORRECTIONAL SERVICES & ORS
[2006] SADC 42

This is an appeal against the order of a Master refusing an application by the plaintiff, Lam Hong Tran, that a non-lawyer, Robert Wayne Collins, be permitted to act as his advocate in this action. I dismissed the appeal on completion of the hearing and I now state my reasons for doing so.
The plaintiff was convicted of murder in 1999 and is serving a sentence of life imprisonment with a non parole period of 14 years. He brings this action against the Department for Correctional Services (first defendant), Advertiser Newspapers Pty Ltd (second defendant), NWS Channel Nine (third defendant), Network Ten (Adelaide) Pty Ltd (fourth defendant) and Channel Seven Adelaide Pty Ltd (fifth defendant). It is unnecessary to set out in detail the issues raised by the plaintiff against the various defendants. The causes of action relied on by the plaintiff are not clear but the claim is related to his conviction and incarceration. For present purposes it is enough to say that the plaintiff claims damages for breach of statutory duty and negligence against the first defendant and, as against the other defendants, damages resulting from the wrongful publication of material about him brought about by the first defendant’s failures but also their own failures to comply with statutory obligations.
Mr Collins, who has no legal qualifications, is also serving a sentence of imprisonment. He has been helping the plaintiff to prepare pleadings and other documents lodged with the court in this action. An application by the defendants was listed for hearing before the Master on 25 January 2006 in which they sought an order for summary dismissal of the plaintiff’s claim or alternatively, that the statement of claim be struck out. The present application was listed for the same day and heard as a preliminary matter. It seeks an order that Mr Collins be allowed to appear as a lay advocate for the plaintiff “in this matter”. It could be argued that the plaintiff’s application is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] SADC 42
Decision Date: 13 April 2006

CaseChat Overview and Summary

In Tran v Department for Correctional Services & Ors, the plaintiff sought to have the respondent, RWC, appear for him as a lay advocate in proceedings before the Court of Appeal. The application was initially dismissed by a Master, and the plaintiff subsequently appealed that decision. The case required the court to determine the principles governing the exercise of discretion by a judge to control proceedings, particularly in relation to the representation of a party by an unqualified person. The court also needed to consider whether the Master had applied the correct legal principles in dismissing the application and if the appeal should be allowed.

The court began by outlining the principles applicable to the exercise of a judge's discretion to control proceedings. It noted that while a judge has broad discretion in this area, that discretion is not unfettered and must be exercised judiciously. The court emphasised that a judge's role is to ensure that proceedings are conducted fairly and efficiently, and that the interests of justice are upheld. In relation to the representation of parties by unqualified persons, the court acknowledged that while such representation is generally not permitted, there may be exceptional circumstances where it is appropriate. The court also highlighted that the Master had already considered the application and had applied the relevant principles in dismissing it.

After considering the arguments presented, the court concluded that the Master had correctly applied the principles governing the exercise of discretion. The court found that the arrangement between the plaintiff and RWC, whereby RWC would receive a share of the proceeds of any judgment, constituted an impermissible fee agreement. The court held that this arrangement would undermine the integrity of the legal system and was contrary to the public interest. Consequently, the court dismissed the appeal and upheld the Master's decision. The court also referred the question of whether RWC had breached the Legal Practitioners Act to the Attorney General for further consideration.

Orders